FINLEY V. DBM TECHNOLOGIES
WORKERS COMPENSATION: Pre-existing condition
PUBLISHED: VACATING AND REMANDING; TAYLOR
DATE RENDERED: 1/26/2007
The Court of Appeals reversed the Workers’ Compensation Board regarding the finding that pre-existing scoliosis of the spine was not a compensable condition. After a work-related injury which caused the need for laminecotomy surgeries, the claimant did not improve and underwent a multilevel fusion to correct scoliosis, a congenital condition of the spine. The ALJ ruled that this further fusion surgery was to correct a non-work related condition, and therefore not the responsibility of the employer. The WCB Affirmed.
The claimant appealed, arguing that it was undisputed that the scoliosis was asymptomatic prior to the injury, and therefore was a condition aroused into disabling reality by the injury. The Court of Appeals reversed in a very well researched opinion, holding that the arousal of a dormant non-disabling condition is a compensable injury. It is the employer’s burden to show a pre-existing active condition, or to show that the pre-existing condition was only temporarily aroused and reverted to its pre-injury state.
By Peter Naake.